A Comparative Study Of Maritime Claims Preservation And General Property Preservation

The Special Maritime Procedure Law of the People’s Republic of China (hereinafter referred to as the Maritime Procedure Law) went into effect on July1,2000, ending the difficult era when maritime cases could only be handled according to the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the Civil Procedure Law) and the related judicial interpretations made by the Supreme People’s Court. As the first special procedure law in China, Maritime Procedure Law includes quite a few of new procedures and systems, and Maritime Claim Preservation is such an important part that it constitutes nearly one quarter of the law. The object of Maritime Claim Preservation is the special property, and its counterpart in the Civil Procedure Law is Property Preservation. And Property Preservation is a common measure taken by the parties who like to solve a civil dispute through litigation, to protect the lawful rights and interests of the parties or the interested parties, to ensure the would be effective judgment can be enforced smoothly and completely. Property Preservation, however, is specified relatively simple and principal in The Civil Procedure Law and quite a few of problems rise in judicial practice due to the simplicity. Bewaring of such an situation, this paper compares Maritime Claim Preservation with Property Preservation in the aspects of theory and practice, and analyzes the similarities and differencies of the two systems, hoping to clarify the relationship between the special one and the general one, and hence offer experiences which the two can draw from each other. The main body of the paper is made up of four chapters as following.Chapter1, firstly, introduces the legislative backgrounds and the current situations of Maritime Claim Preservation and Property Preservation. Secondly, it expounds the concepts related to Property Preservation, Maritime Claim, and Maritime Claim Preservation, extracts the characteristics of the two systems and builds up a theoretical basis to further analyze the connections and differences between the two.Chapter2, firstly, expounds the relationship between Maritime Claim Preservation and Property Preservation from legislative angle. Secondly, it probes into the connections and differences between the two systems from the angle of intents and functions of preservation. Finally, it extracts the fundamental principles through comparison of law principles and provisions, and analyzes the connections and differences.Chapter3, starting from provisions of law, compares a series of core issues in the operation processes of Maritime Claim Preservation and Property Preservation, including competent court, launch of preservation procedure, subject, object, condition and timing of preservation application, application of guarantee, remedy procedure of preservation and preservation measures. It also takes into consideration the problems confronted in judicial practice so as to discuss the differences of the two systems in application. Based on the above, it also compares the merits and put forward important references for each other of the two systems.Chapter4mainly discusses application of institutions, such as ship auction and compensation for wrongful ship arrest, in Property Preservation. It puts forward the references of unique institutions or regulations in Maritime Claim Preservation to general property preservation, which can make the Property Preservation System more effective and reasonable, and hence protects, to the most degree, the parties’interests in time.